Leone v. Greek Peak, Inc.

Appellate Division of the Supreme Court of New York

Leone v. Greek Peak, Inc.

81 A.D.2d 751, 438 N.Y.S.2d 406, 1981 N.Y. App. Div. LEXIS 11314

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 3, 1981

StatusPublished

Cited by2 cases

This text of 81 A.D.2d 751 (Leone v. Greek Peak, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Leone v. Greek Peak, Inc., 81 A.D.2d 751, 438 N.Y.S.2d 406, 1981 N.Y. App. Div. LEXIS 11314 (N.Y. Ct. App. 1981).

Pincite

Opinion

— Order unanimously reversed, without costs, and motion granted. Memorandum: This is a negligence action in which plaintiff’s attorney filed a note of issue containing a check mark designating “Trial without jury”. Less than three months later, plaintiff moved for leave to serve and file a demand for trial by jury. Special Term denied the motion, and plaintiff appeals. Although plaintiff is deemed to have waived her right to a jury trial (CPLR 4102, subd [a]), she may be relieved of the waiver “if no undue prejudice to the rights of another party would result” (CPLR 4102, subd [e]). Plaintiff’s attorney avers that he intended to demand a jury trial in the note of issue but his failure to do so was inadvertent and “due to oversight”. He further alleges that he brought this motion immediately upon bqing advised by “court personnel” that the note of issue failed to contain a demand for a jury. In such circumstances, and in the absence of any claim of prejudice to the defendants, the motion should have been granted (Schwartz v Sunlight Apts., 274 App Div 901). (Appeal from order of Chautauqua Supreme Court — demand for jury trial.) Present — Dillon, P. J., Simons, Hancock, Jr., Doerr and Moule, JJ.

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— Order unanimously reversed, without costs, and motion granted. Memorandum: This is a negligence action in which plaintiff’s attorney filed a note of issue containing a check mark designating “Trial without jury”. Less than three months later, plaintiff moved for leave to serve and file a demand for trial by jury. Special Term denied the motion, and plaintiff appeals. Although plaintiff is deemed to have waived her right to a jury trial (CPLR 4102, subd [a]), she may be relieved of the waiver “if no undue prejudice to the rights of another party would result” (CPLR 4102, subd [e]). Plaintiff’s attorney avers that he intended to demand a jury trial in the note of issue but his failure to do so was inadvertent and “due to oversight”. He further alleges that he brought this motion immediately upon bqing advised by “court personnel” that the note of issue failed to contain a demand for a jury. In such circumstances, and in the absence of any claim of prejudice to the defendants, the motion should have been granted (Schwartz v Sunlight Apts., 274 App Div 901). (Appeal from order of Chautauqua Supreme Court — demand for jury trial.) Present — Dillon, P. J., Simons, Hancock, Jr., Doerr and Moule, JJ.

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Bluebook (online)

81 A.D.2d 751, 438 N.Y.S.2d 406, 1981 N.Y. App. Div. LEXIS 11314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leone-v-greek-peak-inc-nyappdiv-1981.

Opinion

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